Wednesday, April 18, 2012

I blogged about the alien tort statute case, Kiobel v. Shell Petroleum, a few months ago. That case won't be decided until the next Supreme Court term. The Court did decide a separate case, Mohamad v. Palestinian Authority, which presented a somewhat similar issue. The Court unanimously ruled only individuals and not corporations or organizations can be sued under the Torture Victim Protection Act. The use of the word "individual" in the statute was decisive in the opinion written by Justice Sotomayor. http://www.bloomberg.com/news/2012-04-18/torture-suits-against-companies-blocked-by-top-u-s-court.html

Saturday, April 14, 2012

Suing the landlord because your rental home is haunted sounds like a very difficult case to prove. Getting out of a lease is not easy and ghosts aren't going to suffice. Maybe if every former tenant ran out of the apartment screaming that might help. Flickering lights, voices, clothes flying from closets, and taps on the shoulder or TV could be better explained as maintenance issues.

Maintenance issues probably wouldn't get them out of the lease, but might get them some sort of credit. I don't see how they could establish constructive eviction either way.

Monday, April 9, 2012

The agreement described in the article below might be wonderful for diplomacy with the Afghan government, but it requiring soldiers to not only consult with Afghan officials but also get a warrant from an Afghan judge before engaging in night raids is no way to fight a war. Warrants are a great check on government executive power in a functional country that is not a war zone. However, even in that context we have exceptions to the warrant requirement for certain situations. In a country that is not functional and a war zone it doesn't take much foresight to see that this is not going to work. Frankly, we should either fight the war the right way with achievable objectives or withdraw completely.

The main problem facing the United States in Afghanistan is one of endurance and expectations. In order to win the war we have to essentially end the Taliban as an organization. That is not an easy task in a country with terrain like Afghanistan and neighbor, Pakistan, that has a porous border and areas that provide safe haven to the Taliban. Meanwhile as is often the case for an insurgent group mere survival would be a victory for the Taliban. All they have to do is keep a force in the field and avoid decisive battle until we tire of the fight and go home. Furthermore, we have taken upon ourselves the burden of building up an Afghan state and army. Both tasks are never going to be successfully accomplished by outsiders. You could spend 50 years at the task and still fail. The Afghans value independence above all else and dislike foreigners telling them what to do. Afghans have been fighting wars for over 30 years. That we have not been able to put together a suitable army consisting of people with plenty of fighting experience only underlines the futility of the task. As for nation building a tribal society is simply not a society that will accept a modern centralized nation state.

We need to figure out what our objectives are in Afghanistan and select one that is achievable. It would not take as many troops as we have there now to simply contain the Taliban. Containment would mean keeping them out of power and from getting to comfortable in any one area to the point that they could establish training camps for their soldiers or terrorists. A mix of quick reaction mobile ground forces suitable to hostile terrain and airpower could probably achieve that. Typical counter insurgency techniques don't work well when the people of a country don't feel comfortable working with you because they think you will leave meaning that they are stuck dealing with a vengeful Taliban. And in Afghanistan even if they don't think you will leave they also won't cooperate and will probably fight you as they just don't like foreign troops in Afghanistan.

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I am a lawyer licensed to practice in Michigan, California, and Florida and before the United States Supreme Court, the United States District Court for the Eastern District of Michigan, and the United States District Court for the Central District of California.